GSB# 2019-2301; 2020-2246; 2021-1488; 2021-1489
UNION# 2019-0104-0002; 2020-0104-0001;
2021-0104-0001; 2021-0104-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Vrantsidis)
Union
- and -
The Crown in Right of Ontario (Ministry of Education)
Employer
BEFORE
Ian Anderson
Arbitrator
FOR THE UNION
Ali Saghari Collins & Metcalfe LLP Counsel
FOR THE EMPLOYER
Felix Lau Treasury Board Secretariat Legal Services Branch Counsel
CONFERENCE CALL
August 12, 2025
Decision
1There are five grievances before me, each alleging the Grievor was subject to harassment and discrimination contrary to the Ontario Human Rights Code.
2On July 9, 2025, I issued the following case management directions:
A case management hearing was held on July 8, 2025. The parties share a desire to have the grievances before me dealt with as efficiently as possible. The Employer has already provided the Union with production of documents. Having considered the representations of the parties I make the following directions:
On or before July 22, 2025, the Union is to provide the Employer with full particulars of all material facts upon which it relies in support of its position on the grievances before me. For greater clarity the Union will not be permitted to call evidence with respect to facts which have not been fully particularized without leave of the Arbitrator. At the same time the Union shall provide all documents upon which it relies and make any additional requests for further production from the Employer.
On or before August 5, 2025, the Employer is to provide the further production requested by the Union, or, to the extent that it objects to production, specifically list the documents to which it objects producing with a brief statement of the reasons why. The Employer shall also provide any further documents upon which it relies in response to the Union’s particulars. At the same time the Employer is to give notice to the Union of any preliminary motions it may wish to bring.
A conference call with counsel shall be held on August 12, 2025 if necessary to hear submissions with respect to any preliminary motions brought by the Employer.
Prior to the hearing on the merits the parties are to prepare a Book of Documents. Inclusion of a document in the Book of Documents shall be without prejudice to the position of either party as to its relevance. All documents in the Book of Documents will be received into evidence without further proof as being what they appear to be unless a party has given notice prior to the hearing that it objects to the authenticity of a document.
Further case management calls may be scheduled to give further directions as appropriate.
3This award addresses a preliminary motion brought by the Employer on August 12, 2025 to strike some of the particulars filed by the Union in relation to those grievances.
Background
4The grievances before me read as follows:
Grievance 1 - 2019-0104-0002 – July 2, 2019
Statement of grievance
The Employer has violated articles 2, 3, of the collective agreement, but not exclusively, and the ORHC and OHSA by allowing harassing and discriminatory behaviour towards me to continue in the workplace, appearing to be a concerted effort to undermine me based on my disability.
Settlement desired
Cease and desist the harassing and discriminatory behaviour;
To be made whole.
Grievance 2 - 2020-0104-0001 – May 28, 2020
Statement of grievance
The Employer has violated articles 2, 3, of the collective agreement, but not exclusively, and the Ontario Human Rights code, and/or any other related legislation by continuing to discriminate against me on the basis of my disability, undermining my ability to perform in my role as an SO3, and restricting my ability to improve skillsets for the purposes of advancement.
Settlement desired
Cease and desist all bullying/harassing and discriminating behaviour towards me, and develop an inclusive workplace;
Provide me with the tools, resources, and knowledge to perform in my role, and with equal opportunity for advancement; To be made whole
Grievance 3 - 2021-0104-0001 - July 22, 2021
Statement of grievance
The employer has violated articles 2 and 3, but not exclusively, of the collective agreement and any other articles or legislation that applies. The employer has deliberately undermined my role and removed job duties specifically to prevent my position from being properly classified. The employer has assigned job classifications and titles in a discriminatory and arbitrary fashion.
Settlement desired
To be appropriately classified and provided with a job title that correctly reflects the job duties and assignments;
To be recognized for the full scope of work done on a regular basis;
To be made whole.
Grievance 4 - 2021-0104-0002 – July 22, 2021
Statement of grievance
I have been unfairly disciplined, as per the Letter of Reprimand dated June 30, 2021. The employer has violated articles 2 and 3, but not exclusively, of the collective agreement and any other article or legislation that applies.
Settlement desired
Rescind the discipline and withdraw the aforementioned letter from all employer files; To be made whole.
Grievance 5 - 2021-0104-0003 – July 22, 2021
Statement of grievance
The employer has violated articles 2, 3, and 9, but not exclusively of the collective agreement, and/or the OHRC by engaging in discriminatory and harassing behaviours and developing an ongoing toxic workplace.
Settlement desired
Cease and desist the discriminatory action; stop the workplace harassment and ongoing attempts to undermine me and my work;
To be made whole.
5The Grievor also has a number of earlier grievances, dating from June 17, 2013 to October 24, 2016, which are before Arbitrator Leighton. On August 8, 2023, following a hearing lasting 33 days, and spanning five years, Arbitrator Leighton issued a bottom line decision to the earlier grievances submitted by the Grievor, in which she granted the grievances in part: OPSEU (Vrantsidis) and Ministry of Education, 2023 CanLII 81705 (ON GSB). Arbitrator Leighton found that the Employer was liable for discrimination and harassment in respect of “several of the incidents grieved”. However, Arbitrator Leighton dismissed the allegations that management is liable for “Audism”1. The decision with reasons is pending from Arbitrator Leighton, having been delayed for personal reasons, now resolved. As part of its particulars in the grievances before me, the Union has refiled the particulars it filed in relation to the first three of the earlier grievances, which were dated June 17, 2013, February 12 and June 4, 2015. I will refer to these as the “old particulars” as distinct from the “fresh particulars” filed only in the grievances before me.
6The particulars filed by the Union in relation to the grievances before me to which the Employer objects are as follows:
(i) All of the old particulars.
(ii) Paragraphs 4 to 11 of the Union’s fresh particulars.
7Paragraphs 4 to 11 of the fresh particulars read as follows:
In or about 2010, Vernan Lund (“Mr. Lund”) asked the Grievor if he had done a performance review since records could not be found of it. This review was sent from London, where the Grievor worked, to Toronto. Lisa Lovnicki, HR representative in Toronto, indicated that this document was lost. The Grievor asked Mr. Lund if these reviews are used to assess classification and he was told they would not. This is in contradiction to the Employers promotion policies.
In 2013, in a Tim Hortons, Tim Wade (“Mr. Wade”), Residential Manager at the time, informed Mr. Vrantsidis that management had instructed Human Resources to create more grievances as staff were “too happy”. Mr. Wade also informed Mr. Vrantsidis that Cherly Zinser (“Ms. Zinser”) had instructed Mr. Wade to lie to the arbitrator regarding his previous grievances.
In 2014, Mr. Lund visited Mr. Vrantsidis’s sister-in-law, who was an SO5 for a government Ministry, to discuss Mr. Vrantsidis’s performance even though there is no work related connection between Mr. Vrantsidis and his sister-in-law.
On or about January 29, 2016, Mr. Vrantsidis was interviewing for the SO4 temporary position. During this interview he had an emotional breakdown due to seeing Mr. Wayne earlier that day. June Rogers, Brent Turkvan, and Winston Sun were witness to this incident.
In or about July of 2016, during a conversation between Mr. Lubert and the Grievor, Mr. Lubert told him that he needs to move quickly regarding his grievances since he was being targeted by management.
In that same conversation, the Grievor told Mr. Lubert that he was told by Julia Robinson that Nancy Sander and Cheryl Zinser were speaking poorly about him behind his back. The Grievor also raised to Mr. Lubert that his wife was receiving harassment from management and asked for there to be a stop to this.
In the summer of 2016, Mr. Vrantsidis was again subject to differential treatment when Ms. Leonard, Acting IT Manager, refused to allow him to change his medical appointment. This is despite the fact that other staff, namely Shawn Coleman (“Mr. Coleman”), were approved under similar circumstances.
As you will see in the Union’s particulars from the previous case, Mr. Reeves was a particularly cruel manager to Mr. Vrantsidis. His conduct included verbal and physical harassment on a regular basis which included whistling at Mr. Vrantsidis despite numerous warnings not to.
Summary of the Parties’ Arguments
8The Employer argues the disputed particulars should be struck on one or more of three reasons: the “three-year rule”; res judicata; and para. 7 of the fresh particulars is barred by a settlement previously reached between the parties and the Grievor.
9The Union argues that arbitration is not to be won and lost on technicality of form and that an arbitrator has the authority to address the true substance of the dispute between the parties. Where there is a question as to whether a matter forms part of that dispute, an arbitrator may hear evidence relating to the parties’ discussions during the grievance procedure. The present grievances are broadly framed as relating to a history of harassment related to the Grievor’s hearing disability. The issues raised in the particulars arise from that history and should come as no surprise to the Employer, but if the Employer asserts they are not included in the grievances then evidence should be heard on that point. An arbitrator has the jurisdiction to address issues of harassment based on disability and should do so. The Union argues that res judicata does not apply in this case and that application of res judicata and abuse of process are discretionary and should not be applied in this case. The Union also argues that striking the particulars would result in a denial of natural justice.
Effect of the Settlement
10It is convenient to address the effect of the settlement first.
11The allegation in paragraph 7 of the fresh particulars is that the Grievor had an emotional breakdown during the January 2016 interview for the SO4 competition, because he had seen Wayne Reeves (his alleged harasser) earlier in the day.
12The Grievor had filed a grievance challenging the outcome of the competition, and this grievance was resolved by way of a settlement dated November 7, 2017.
13The settlement signed by the Grievor and the Union is brief, but it included a release that encompassed any potential claims under the Human Rights Code or the Respectful Workplace Policy as it relates to the competition grievance:
The Union and the Grievor agree to release the Employer, its employees, agents, officials and servants from any and all claims, rights, demands, actions, and complaints under the above-noted grievance, including any and all claims, rights, demands, actions, and complaints under the collective agreement, the Employer's Respectful Workplace policy, the Human Rights Code, the Employment Standards Act, the Occupational Health and Safety Act, and the Public Service of Ontario Act, 2006.
14In the result, there can be no further dispute between the parties with respect to the events described in paragraph 7. Accordingly, evidence in relation to the events described in paragraph 7 is irrelevant to the grievances before me. Therefore, paragraph 7 is struck.
Res Judicata and Natural Justice
15The source of an arbitrator’s jurisdiction is the grievance or grievances before the arbitrator. Given the broadest possible interpretation, the grievances before me allege ongoing discrimination and harassment based on disability. The Employer’s arguments do not rest on a narrower or more technical interpretation. There is no challenge to my jurisdiction to address that issue.
16Grievances are to be filed promptly and in accordance with the time limits in the collective agreement. The time limit for filing a grievance under this collective agreement is 30 days. In general, therefore, a grievance is a dispute about something which occurred within the 30 days prior to the date of the filing of the grievance.
17The earliest of the grievances before me is dated July 2, 2019 and the latest is dated July 22, 2021. The issue, therefore, is whether the Grievor experienced harassment or discrimination within the period commencing 30 days prior to July 2, 2019 and ending July 22, 2021 (absent agreement of the parties to extend that time period).
18Discrimination and harassment can be subtle. Evidence with respect to events prior to the period covered by the grievance may be relevant to proving that what occurred was a manifestation of discrimination or harassment. At the same time, the right of the employer to a fair hearing may be compromised if required to defend itself in relation to events in the past which were not grieved.
19To address these challenges, the Grievance Settlement Board has adopted the “three-year rule” in cases of harassment or systemic discrimination. The “rule” allows a union to introduce evidence of events prior to the date of the grievance in order to prove that what a grievor experienced during the period covered by the grievance constituted discrimination or harassment. The “rule” also limits how far back in time that evidence can reach in order to avoid undue prejudice to the employer in having to investigate and respond to events not previously grieved. The time period chosen by the Board has generally been three years. The “three-year rule” is in fact not so much a rule as a guideline. As stated by Arbitrator Watters in OPSEU (Akintunde) and Ministry of Community Safety and Correctional Services, 2019 CanLII 42398 (ON GSB), 2018 CanLII 55850 (ON GSB), at para 7:
In deciding whether, and how, to apply the rule, the Board has considered the following matters:
whether the grievor was aware of the right to challenge or grieve the earlier events which the Union seeks to rely on;
whether the hearing would be unduly protracted by the application of the rule, as a result of the need to present and consider voluminous evidence relating to the past events; and
whether extending the period of arbitral review would raise concerns from both an equitable and procedural standpoint.
20Application of the three-year rule does not change the substance of the grievance before the arbitrator. As I stated in Ontario Public Service Employees Union (Cooper) v Ontario (Clean Water Agency), 2019 CanLII 42398 (ON GSB):
12The three year rule, however, does not provide a basis to expand the grievance before an arbitrator. It also does not render what would otherwise be irrelevant evidence relevant. Evidence is not admissible simply because it falls within the three years (or such other period as is appropriate in the circumstances), it must be relevant to proving the incident or incidents which form the basis of the grievance constitute harassment. Further, to the extent that evidence with respect to earlier events is relevant, the three year rule does not provide a basis for granting a remedy with respect to those events per se.
21I turn to consider the impact of the proceedings before Arbitrator Leighton. I commence by noting the issue before Arbitrator Leighton is not the same as the issue before me. Simply stated, the issue before me is whether the Grievor was subjected to harassment and discrimination during the period July 2, 2019 to July 22, 2021. By contrast, the issue before Arbitrator Leighton is whether the Grievor was subjected to harassment and discrimination during the period June 17, 2013 up to and including October 24, 2016. I do not have jurisdiction to grant a remedy with respect to any harassment and discrimination the Grievor experienced during that earlier period of time. A failure by Arbitrator Leighton to provide reasons for her decision would not serve to clothe me with that jurisdiction.
22The Employer seeks to strike certain paragraphs of the Union’s particulars pursuant to the principle of res judicata, as these paragraphs rely on matters which were or ought to have been addressed in the matter before Arbitrator Leighton. The Employer relies upon OPSEU (Fitzpatrick) and Ministry of Community Safety and Correctional Services, 2018 CanLII 109249 (ON GSB) (Gee), at para 19:
19There are two distinct aspects to res judicata. First, it bars a party from adjudicating a matter that has already been decided. Second, it prevents a party from adjudicating a matter that it ought to have brought up in an earlier proceeding. The principle of res judicata serves to bar evidence in order to preserve and protect principles such as: confidence in the administration of justice; judicial economy; consistency of decisions; the prevention of forum shopping; and the finality of legal disputes. In a grievance arbitration system where there are a considerable number of grievances that are referred to mediation and arbitration, the system would simply break down if parties were permitted to relitigate matters already decided or engage in litigation by instalment.
23The Union notes section 48(12) (f) of the Labour Relations Act, 1995, S.O. c. 1, Sched. A, and argues that arbitrators are not strictly bound to apply principles of res judicata or the related principle of issue estoppel. Rather arbitrators have discretion to adopt procedures which are flexible, efficient and fair. An administrative tribunal should not apply the doctrine of res judicata where it would not be fair in all of the circumstances to hold a party to the earlier decision. In any event, issue estoppel only applies to an issue the determination of which was “fundamental” or “essential” to the earlier proceeding, and where the earlier decision was “conclusive” on that issue. The Union cites Ottawa-Carleton District School Board and O.S.S.T.F., District 25, 2014 CanLII 31407, 244 L.A.C. (4th) 211 (Knopf) for the proposition that in order for the principles of res judicata to apply the decision itself must be in “judicial” form and that a bottom line ruling does not constitute such a decision.
24In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77 (City of Toronto), the Court distinguished between three common law doctrines: issue estoppel, which is a branch of res judicata; collateral attack; and abuse of process. The Court noted that while these doctrines are interrelated, they are not always entirely interchangeable: see para. 22. I note that while in Fitzpatrick, Arbitrator Gee refers only to “res judicata”, she was not referred to the Supreme Court’s decision in City of Toronto and its discussion of the distinction between the various doctrines.
Issue Estoppel
25City of Toronto described issue estoppel as follows:
- Issue estoppel is a branch of res judicata (the other branch being cause of action estoppel), which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successfully invoked, three preconditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final; and (3) the parties to both proceedings must be the same, or their privies (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44, at para. 25, per Binnie J.
In my view, what Arbitrator Gee describes in OPSEU (Fitzpatrick) as the first aspect of res judicata is a reference to issue estoppel.
26Danyluk provided a further description of the nature of issue estoppel:
…. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel).
…. the estoppel extends to the material facts and the conclusions of law or of mixed fact and law (“the questions”) that were necessarily (even if not explicitly) determined in the earlier proceedings.
27Danyluk identified the following preconditions for the application of issue estoppel (see para. 25):
(1) the issue must be the same as the one decided in the prior decision;
(2) the prior judicial decision must have been final; and
(3) the parties to both proceedings must be the same, or their privies.
28If the preconditions are met, the application of issue estoppel remains a matter of discretion. In Danyluk, the Court noted that discretion should be given “limited application” but courts, but also suggest that some “broader scope” might be applied by "administrative tribunals”. Without attempting to be exhaustive, Danyluk listed seven factors which may be relevant in making this determination (paras. 66 - 80):
whether the initial tribunal’s governing statute contemplates parallel proceedings;
whether the purpose or focus of the two sets of proceedings is similar;
whether the earlier process included a right of appeal that was not taken advantage of;
whether the procedural safeguards in the earlier proceeding were adequate to ensure natural justice;
whether the specialization or expertise of the first decision-maker is suited to making the determination called for in the subsequent inquiry;
whether the earlier proceedings by their nature occurred at a time when the claimant was particularly vulnerable; and
whether, having regard to all the circumstances, the strict application of the doctrine of estoppel would work an injustice.
29Application of the doctrine of issue estoppel in this case would preclude a challenge not only to Arbitrator Leighton’s decision with respect to the issue before her, but also the material facts necessarily embraced therein. The issue before me is not the same as those before Arbitrator Leighton; while the grievances before Arbitrator Leighton and me both allege discrimination and harassment, they relate to different periods of time. Having said that, some of the facts necessarily embraced by Arbitrator Leighton’s decision may be relevant to the question of whether the conduct at issue before me constitutes harassment or discrimination. To the extent that they are, the application of issue estoppel renders Arbitrator Leighton’s decision conclusive with respect to those facts. Evidence with respect to those material facts would, therefore, be irrelevant. Issue estoppel would not, however, preclude evidence with respect to other relevant facts, if any, falling within the period before Arbitrator Leighton.
Collateral Attack
30In City of Toronto, the Court made the following comments with respect to the rule against collateral attack:
Binnie J. described the rule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” (emphasis added [by the Court]).
Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process.
31So, in this case, the admission of evidence in relation to material facts determined by Arbitrator Leighton, as sought by the Union, would permit a challenge to the correctness of the factual basis of her decision, but is not a contest about whether that decision has legal effect. Accordingly, it is best addressed under the doctrine of abuse of process.
Abuse of Process
32In City of Toronto, the Court noted that abuse of process is a broad and flexible doctrine which rests on the inherent and residual discretion of a judge to prevent an abuse of the court’s process. The Court stated (at para. 35) abuse of process may be established where:
(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
33In City of Toronto, the Court emphasized the issue addressed by the abuse of process doctrine is the integrity of the adjudicative process:
Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.
The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55)
34It is important to note that in City of Toronto the “original process” was a proceeding before a court (specifically, a criminal court) and the “subsequent proceeding” was before a labour arbitrator. The original decision of the court was subject to “review” by way of appeal on questions of law. By contrast, in the case at hand, the original process and the subsequent process are both labour arbitrations. Decisions of arbitrators are final: they are not subject to appeal on questions of law, but are only subject to judicial review on a standard of reasonableness. The application of the doctrine of abuse of process must be considered within that context. It appears to me that what Arbitrator Gee describes in OPSEU (Fitzpatrick) as the second aspect of res judicata is a discussion of abuse of process within a labour relations context. I find her discussion concise and helpful. For ease of reference, I repeat it again here:
Second, it prevents a party from adjudicating a matter that it ought to have brought up in an earlier proceeding. The principle of res judicata serves to bar evidence in order to preserve and protect principles such as: confidence in the administration of justice; judicial economy; consistency of decisions; the prevention of forum shopping; and the finality of legal disputes. In a grievance arbitration system where there are a considerable number of grievances that are referred to mediation and arbitration, the system would simply break down if parties were permitted to relitigate matters already decided or engage in litigation by instalment.
I note that similar conclusions were reached with respect to a harassment grievance in Ontario Public Service Employees Union (Martin) v Ontario (Transportation), 2023 CanLII 28226 (ON GSB) (McKendy) at paras. 48-50.
35The focus of the doctrine of abuse of process is the integrity of the adjudicative process, not the outcome reached in a given case. It follows that Arbitrator Leighton’s reasons will not be determinative of whether there was an abuse of process.
36The Union notes that application of the doctrines of issue estoppel and abuse of process is discretionary and argues that it would be unfair to apply them in this case for the following reasons.
37The Union notes that the Grievor is an individual with a hearing disability and argues that striking the particulars would result in further challenges for the Grievor expressing themself.
38I am not persuaded by this argument. It is a bald assertion for which no basis has been provided. I note that ASL interpretation and a note taker have been provided on every hearing day at which the Grievor has been present and it is anticipated that they will continue to be provided in the future.
39The Union notes that Arbitrator Leighton has yet to provide reasons for her decision. It argues that in order for the doctrine of “res judicata” to apply, Arbitrator Leighton’s decision must be not only final but “judicial” in nature. In the absence of reasons, the Union argues that Arbitrator Leighton’s decision cannot be considered judicial in nature, citing Ottawa-Carleton District School Board v Ontario Secondary School Teachers’ Federation, District 25 Plant Support Staff, 2014 CanLII 31407 (ON LA) (Knopf).
40In Ottawa-Carleton District School Board, three employees were fired on essentially the same facts: video surveillance had captured them smoking marijuana while in uniform on school property. Grievances with respect to two of them, referred to as “Grievor 1” and “Grievor 2”, were taken to arbitration. The employer sought to consolidate the two grievances before one arbitrator. The union, as was its right, declined. The grievance in relation to Grievor 1 proceeded before “Arbitrator A”; the grievance in relation to Grievor 2 was referred to Arbitrator Knopf. The proceedings before Arbitrator A commenced first. The parties argued the admissibility of the video evidence as a preliminary issue before Arbitrator A. Arbitrator A issued a bottom line decision ruling the evidence was not admissible. The parties requested reasons. Arbitrator A did not provide them by the expected date, rather the parties were advised that Arbitrator A’s practice was “winding down for personal reasons”. The Employer sought to argue the issue of the admissibility of the video evidence before Arbitrator Knopf. The Union argued Arbitrator A’s bottom line decision gave rise to issue estoppel and the matter could not be re-argued before Arbitrator Knopf. Arbitrator Knopf reviewed the principles of issue estoppel and determined that the doctrine did not apply to the case before her. She noted that in order for the doctrine of issue estoppel to apply not only must the prior ruling be final, but it must be made in a “judicial manner”. She concluded that in in order for a decision to be made in a judicial manner, it must contain reasons. No reasons had been provide by Arbitrator A up to and including the date of her decision. Therefore, the bottom line decision of Arbitrator A could not be considered a “judicial decision” and the doctrine of issue estoppel did not apply. I note that there is a suggestion in Arbitrator Knopf’s award that Arbitrator A’s “personal circumstances” made it unlikely that reasons would ever issue.
41In my view, Ottawa-Carleton District School Board is distinguishable from the case before me in several respects.
42First, Ottawa-Carleton District School Board is concerned only with the doctrine of issue estoppel. It contains no reference at all to the doctrine of abuse of process. By contrast, the doctrine of abuse of process has direct application to the case before me. The Union seeks to call evidence in relation to matters which were or ought to have been brought up in the hearing before Arbitrator Leighton. That hearing took 33 days, and spanned five years. It would be a clear abuse of process to permit the Union to litigate those matters before me.
43Second, in Ottawa-Carleton District School Board, the issue before Arbitrator A and Arbitrator Knopf was the same: the admissibility of the same video evidence. Both had jurisdiction to determine that issue. By contrast, the issue before Arbitrator Leighton is not the same as the issue before me. Her decision will not give rise to issue estoppel with respect to the issue before me.
44Third, unlike Arbitrator A, it is expected that Arbitrator Leighton will issue reasons for her bottom line decision. Some of the facts necessarily embraced by Arbitrator Leighton’s decision may be relevant to the question of whether the conduct at issue before me constitutes harassment or discrimination. To the extent that they are, when Arbitrator Leighton provides the reasons for her decision, her decision will be conclusive with respect to those facts. Any unfairness to the Union (or the Employer) from proceeding in the absence of those reasons can be addressed by an adjournment until such time as Arbitrator Leighton provides her reasons. I note that thus far the Union has not sought such an adjournment.
45The Union cites one case in which an arbitrator held it would not be an abuse of process to permit the union to proceed with a grievance alleging a failure to accommodate contrary to the human rights legislation, despite an earlier decision by province’s workers’ compensation tribunal that the grievor was permanently disabled: Inland Kenworth and I.U.O.E., Local 115, 2020 CanLII 89929, 322 L.A.C. (4th) 1 (Matacheskie). I am not persuaded that the award has application. The arbitrator noted that the worker’s compensation tribunal’s decision was not final, as the level of disability could be reassessed, and more significantly that the tribunal and no jurisdiction to deal with the employer’s duty to accommodate under the human rights legislation. Put differently, the duty to accommodate was not an issue which could have been raised before the tribunal. In those circumstances, it is difficult to see how it would be an abuse of process to litigate it before the arbitrator. Further, and in any event, Arbitrator Leighton’s decision is final.
46The application of the doctrine of abuse of process is of course discretionary, but none of the factors reviewed in City of Toronto apply to support the exercise of that discretion in this case. Arbitrator Leighton has issued a final decision, albeit with reasons pending. There is no suggestion that the proceeding before Arbitrator Leighton was tainted by fraud or dishonesty. There is no suggestion that there is fresh, new evidence, previously unavailable, which conclusively impeaches the original result. The stakes in the proceeding before Arbitrator Leighton were no less than the stakes in the proceedings before me. Finally, there was a full and robust hearing before Arbitrator Leighton.
47The Union argues that Syndicat des Employés Professionels de l’Université du Québec à Trois-Rivières v. Université du Québec (1993), 1993 CanLII 162 (SCC), 101 D.L.R. (4th) 494 (SCC) stands for the proposition that it is a breach of natural justice for a tribunal to exclude evidence that is clearly relevant.
48I do not accept that Syndicat des Employés Professionels de l’Université du Québec à Trois-Rivière stands for this proposition. Rather, Syndicat des Employés Professionels de l’Université du Québec à Trois-Rivière states that a labour arbitrator is entitled to reject relevant evidence unless doing so would clearly amount to a breach of natural justice. In that decision, Lamer C.J. writing for the majority, stated (at p. 491):
For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
49The three-year rule and its exceptions can be seen as ensuring any exclusion of otherwise relevant evidence does not result in a breach of natural justice. A similar conclusion was reached by Arbitrator Herlich in Ontario Public Service Employees Union (Dubuc) v Ontario (Community Safety and Correctional Services), 2016 CanLII 90058 (ON GSB). In the result, I see no reason not to apply the “three-year rule” to the particulars filed by the Union.
50Similarly, applications of the doctrines of issue estoppel and abuse of process necessarily imply the exclusion of otherwise relevant evidence. The mere fact that such evidence is excluded is not, therefore, a breach of natural justice.
51I turn now to consider applications of these principles to the disputed particulars.
52The three-year rule serves to exclude all of the events which were subject to the old particulars and paragraphs 4, 5 and 6 of the fresh particulars. They pre-date the events before me by more than three years. There is no reason to extend that period. The Grievor was clearly aware of his right to challenge or grieve the events, as he did so in the grievances which were before Arbitrator Leighton. If the 33 day length of the hearing before Arbitrator Leighton is any guide, the hearing before me would be unduly protracted by consideration of evidence in relation to those events. Finally, extending the period of arbitral review to include that evidence would raise concerns from both an equitable and procedural point of view, as these are matters which were or ought to have been raised before Arbitrator Leighton and therefore the principles of issue estoppel and abuse of process apply. I note that those principles also serve as an independent basis for exclusion of that evidence even if it did not violate the three-year rule.
53The balance of the fresh particulars are not excluded through the application of the three-year rule. I turn to consider whether they should be excluded on the basis of issue estoppel or abuse of process.
54Paragraph 8 and 9 of the fresh particulars relate to a conversation between a Mr. Lubert and the Grievor in or about July 2016. They do not allege impropriety on the part of Mr. Lubert. Rather they allege that Mr. Lubert told the Grievor that management was targeting and harassing the Grievor and his wife. In the absence of Arbitrator Leighton’s reasons, it is not clear at this time whether this allegation was raised before her or whether it falls within the material facts necessarily embraced with respect to the issue before her. However, as the grievances before Arbitrator Leighton covered the period ending in October, 2016, this allegation could have been raised before her. Accordingly, this evidence is excluded on the basis of abuse of process.
55Paragraph 10 of the fresh particulars alleges differential treatment of the Grievor by the Acting IT Manager in the summer of 2016. In the absence of Arbitrator Leighton's reasons, it is not clear at this time whether this issue was raised before her or whether it falls within the material facts necessarily embraced with respect to the issues before her. However, as the grievances before Arbitrator Leighton covered the period ending in October, 2016, this issue could have been raised before her. Accordingly, this evidence is excluded on the basis of abuse of process.
56Paragraph 11 reads:
- As you will see in the Union’s particulars from the previous case, Mr. Reeves was a particularly cruel manager to Mr. Vrantsidis. His conduct included verbal and physical harassment on a regular basis which included whistling at Mr. Vrantsidis despite numerous warnings not to.
57For the reasons stated above, the Union’s particulars from the previous case (which I have referred to as the “old particulars”) are struck. I note that those particulars covered the period up to June, 2015, but the grievances before Arbitrator Leighton covered the period up to October 24, 2016. In the absence of Arbitrator Leighton’s reasons, it is not clear at this time whether the allegation that Mr. Reeves engaged in verbal or physical harassment of the Grievor during the period June, 2015 to October, 2016 was raised before her or whether it falls with the material facts necessarily embraced with respect to the issue before her. However, as the grievances before Arbitrator Leighton covered the period ending in October, 2016, this allegation could have been raised before her. Accordingly, evidence in relation to alleged verbal and physical harassment by Mr. Reeves during that period is excluded on the basis of abuse of process.
58To be clear, I am concerned here only with whether or not evidence will be heard in relation to earlier events. Reliance on findings of fact with respect to those events by Arbitrator Leighton does not violate the three-year rule, or the principles of issue estoppel or abuse of process. Indeed, a corollary to the principle of issue estoppel is that earlier findings with respect to issues means that findings of fact necessarily embraced by the determination of those issues are binding upon me and may be relied upon by the Union. I note Arbitrator Gee makes a similar statement in Fitzpatrick at para. 20. The relevance or weight to be given to those findings is another matter which can be addressed as necessary.
59Finally, I would like to thank both counsel for their submissions. While I have only addressed the arguments and authorities I consider necessary for the purposes of this decision, I have reviewed and considered them all.
Dated at Toronto, Ontario this 12th day of September 2025.